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Section 465 of Criminal Code
regarding criminal conspiracy found here
Steven
Truscott 2005
Steven Truscott:
Waiting for Ontario, 2006
Delays mean Truscott's
appeal still months away
Canadian Press, Jan.
4, 2006
TORONTO - Ontario's chief justice
says Steven Truscott's appeal of his murder conviction is still
"many months" away because Crown and defence lawyers
are still preparing their complex cases.
Chief Justice Roy McMurtry says he is concerned about the delay
and had hoped the appeal would've been scheduled by now.
But he notes the decades-old
case involves a complex investigation requiring many interviews
and a lot of research.
At the age of 14, Truscott
was sentenced to death for the rape and murder of 12-year-old
Lynne Harper in 1959.
His sentence was commuted to life in prison and Truscott served
time until 1969, when he was released on parole.
He won the right to appeal
in 2004.
McMurtry says he wants the
public to get a better understanding of the delays, since the
case was supposed to be expedited.
He says submissions concerning
the case will be made to the court on Jan. 20.
A report by Justice Fred Kaufman
concluded last year that new evidence is not enough to exonerate
Truscott but shows a likely miscarriage of justice.
No live broadcasts of
Truscott's judicial review
CTV.ca News Staff, January
20, 2006
The news media will not be
allowed to broadcast the review of Steven Truscott's 1959 murder
conviction because some of the evidence may embarrass witnesses.
The review is expected to take
place later this year.
Justice Minister Irwin Cotler
released a report on Truscott's conviction in November 2005.
Cotler said there was a likely "miscarriage of justice"
and asked the Ontario Court of Appeal to conduct a review.
In court, lawyers for the media
argued that testimony presented during Truscott's review should
be available for broadcast.
However, Ontario prosecutors
told the panel of three judges that the review may cause embarrassment
for some of the witnesses. The judges agreed, saying no to live
broadcasts.
There is no word on whether
lawyers for the media will appeal the ruling.
Truscott was 14 when he was
sentenced on Sept. 30, 1959 to hang for Lynn Harper's murder,
less than three months after the 12-year-old's body was found
near Clinton in southwestern Ontario.
His summary trial was appealed
in January 1960 and although Truscott lost, his death sentence
was commuted immediately afterwards.
Later that year, he was denied
leave to appeal to the Supreme Court, although the government
finally ordered the high court to re-examine the case in 1966,
without redress.
Truscott was released on parole
in 1969 and settled in Guelph, Ont., where he rebuilt his life
under an assumed name.
He began the campaign to clear
his name in 1997 and was deeply disappointed at the government
decision to send him back to the Ontario Court of Appeal rather
than order a new trial.
- Did flawed pathology
convict in '59?
Lawyers think girl's time of death incorrect
- Defence has two experts
who will refute testimony
TRACEY TYLER, LEGAL
AFFAIRS REPORTER, The Toronto Star, Jan. 22, 2006
When a pathologist held up
a jar to a light bulb in a southwestern Ontario morgue 47 years
ago, he ignited a forensic controversy that continues to this
day.
Dr. John Penistan was performing
an autopsy on the body of 12-year-old Lynne Harper. He would
later testify that by examining a jar of her stomach contents,
a thick and lumpy stew, he concluded that her death occurred
within two hours of eating her last meal.
His evidence would tighten
the noose, legally and literally, around Lynne's classmate, Steven
Truscott, 14, who was sentenced in September, 1959, to hang for
her June murder. His sentence was later commuted to life in prison.
Penistan's damning testimony
was supported by British forensic pathologist Dr. Cedric Keith
Simpson in a spellbinding 1966 showdown with Truscott's lawyer
in the Supreme Court of Canada, which upheld Truscott's conviction.
Now, 40 years after that historic
hearing, two other pre-eminent medical experts may be on the
verge of making history of their own. Dr. John Butt, a Vancouver
pathologist who was Simpson's protegé and close friend,
says he is saddened by his former mentor's testimony, which he
describes as biased and "misleading."
Butt has reluctantly come to
believe that Simpson may have been motivated by an intense dislike
for his long-time rival, Dr. Francis Camps, another English forensic
pathologist who testified for Truscott at the 1966 hearing.
Meanwhile, Dr. Bernard Knight,
author of the English-speaking world's leading textbook on forensic
pathology, describes Penistan's use of stomach contents to estimate
Lynne's time of death as "black magic," and says there
is no forensic evidence linking Truscott to her murder.
Knight and Butt are two of
as many as 25 witnesses who will testify before a three-judge
panel of the Ontario Court of Appeal during its extraordinary
review hearing into the case.
Truscott, who turned 61 this
week, may also be a witness at the hearing, which might begin
this year. Yesterday, he made his first trip back to court in
four decades.
His legal team will decide
by next month whether to seek the court's permission to call
him as one of the witnesses, said Philip Campbell, one of his
lawyers.
The panel ruled yesterday that
"the interests of justice" require it to see and hear
several witnesses in person to determine whether their testimony
is credible and reliable and should be admitted as evidence during
the hearing.
They include at least nine
witnesses the Crown wants to cross-examine and another three
that may be cross-examined by Truscott's lawyers. Many testified
behind closed doors during an exhaustive review of the case by
retired Quebec Court of Appeal judge Fred Kaufman between 2002
and 2004.
Others were involved in a recent
reinvestigation of the case conducted by Ontario's attorney general
and the Ontario Provincial Police.
In hearing their evidence,
the court will depart from its usual practice of considering
only testimony contained in a written record.
The Crown was opposed to the
idea of hearing from live witnesses. But under questioning from
Justice David Doherty, Crown counsel Leanne Salel admitted there
would be no prejudice to the Crown's case if the court heard
from witnesses in person.
The panel, which is headed
by Ontario Chief Justice Roy McMurtry and also includes Justice
Michael Moldaver, made it clear yesterday that it is acutely
conscious of the significance of the case and its role in settling,
perhaps finally, what Campbell described as "decades of
concern about whether a teenage boy was rightly or wrongly convicted
of capital murder."
"This case, I think it's
fair to day, is the most well-known, to use a neutral term, criminal
case in Ontario in the last 100 years," Doherty said.
The cross-examinations could
take three weeks. The proposed witnesses include a woman whose
testimony may support a theory that Lynne was killed after being
picked up by a hitchhiker.
She was last seen riding on
the crossbar of Truscott's bicycle between about 7 and 7:30 p.m.
as they travelled down a county road toward Highway 8 near Clinton,
Ont., on June 9, 1959. Her body was found two days later.
Her time of death and Truscott's
whereabouts were central to the case. The prosecution's theory
depended on establishing that Lynne died while known to be in
Truscott's company.
Truscott has maintained that
he dropped her off at the highway and later turned around and
saw her getting into a car. He was seen at the local schoolyard
by 8 p.m. and was back at home shortly afterwards.
According to Lynne's parents,
her dinner that night consisted of turkey, dressing made with
bread, summer savoury and onions, as well as canned peas and
boiled potatoes. Pineapple upside down cake was on tap for dessert.
She finished eating by 5:45 p.m.
When she headed to a Girl Guides
meeting later, she had a purple sucker.
Penistan performed the autopsy
in a cramped, dimly lit room in the local funeral home, removing
what he called a pint of thick, lumpy sludge with pieces of meat
and vegetables.
The pathologist said he also
removed about 1 metre of the upper bowel that contained little,
if any, food. At Truscott's trial, Penistan told the jury the
stomach normally empties within two hours after a meal. Based
on the state of Lynne's stomach contents, she likely died within
two hours of eating, probably between 7 and 7:45 p.m. he said.
He was contradicted by defence
expert Berkeley Brown, who said it can take up to eight hours
for the stomach to empty. Truscott's trial lawyer felt the judge
practically invited jurors to reject Brown's testimony by telling
them they could believe Penistan, an "attorney general's
pathologist of many years standing" - or Brown.
At the 1966 Supreme Court hearing,
Simpson backed Penistan and told Truscott's lawyer, Arthur Martin,
that there was "enormous literature" on the emptying
process of the stomach and a general consensus it emptied in
two stages, over about 90 minutes.
Questioned during Kaufman's
review in 2002, however, Vancouver pathologist Butt said Simpson
contradicted himself on that very point in a July 1966 letter
to Ontario Crown lawyers. It referred to a June 1966 article
from the British medical journal The Lancet, which discussed
a great absence of literature on stomach emptying.
Butt suggested his former mentor's
great authority as a renowned pathologist may have left the Supreme
Court all too willing to accept his opinion and ultimately damaged
the case.
Similar concerns were raised
by Bernard Knight. Experiments and the evolution of medicine
since 1959 have confirmed great variability in the rate of stomach
emptying, which can take up to four hours, he told the Kaufman
review.
Carbohydrates, fat and emotions
such as anxiety and terror can slow the digestive process, he
said.
In fact, if stomach contents
are thick in consistency, as Lynne's were, that suggests - contrary
to Penistan's opinion - that many hours may have passed since
the meal was consumed, Knight said. Fluid initially passes through
the stomach within a minute or two of eating, and the remaining
contents liquefy and squirt into the upper bowel bit by bit.
There is now substantial consensus
in the medical community that stomach contents - as well as body
decomposition and the state of rigor mortis, which Penistan also
looked to - are "highly unreliable" methods for determining
time of death with such precision, Kaufman said in his report.
"Simply put, modern science
has removed the time of death as a piece of circumstantial evidence
favouring Truscott's guilt."
Taken together with other undisclosed
evidence in the case, this new forensic evidence may provide
a basis for concluding that a miscarriage of justice occurred,
Kaufman said.
Kaufman, however, lacked the
legal power to cross-examine witnesses. It was largely for that
reason that he recommended the case be referred to the appeal
court.
While those cross-examinations
will now take place, the Crown may also attack the expert evidence
on another front.
Material filed with the court
by Truscott's lawyers says the Crown has introduced a new element
into the case: gastroenterology, the study of diseases and pathology
of the stomach.
- Rush to judgment' hampered
Truscott
- Key witness says tunnel
vision played a role in Steve Truscott's murder trial.
TRACEY TYLER, LEGAL
AFFAIRS REPORTER, Yorontoi Star, Feb. 21, 2006
A retired air force doctor
who played a key role in the 1959 police probe that led to Steven
Truscott's arrest for murder has expressed concerns that tunnel
vision and a rush to judgment may have affected the investigation,
a court document says.
Dr. David Brooks offered his
views while being interviewed under oath by Fred Kaufman, a former
Quebec appeal court judge who conducted a two-year review of
the Truscott case at the request of the federal government.
"In essence, Dr. Brooks
testified of a rush to judgment and tunnel vision regarding the
investigation as a whole and regarding his own involvement in
the case," says the document, which was filed recently with
the Ontario Court of Appeal by Truscott's lawyers.
But a more detailed account
of Brooks' testimony isn't publicly available. Much of what he
had to say during the interview was deleted from Kaufman's 700-page
report before it was released last November by the federal government.
The material was removed at
the request of Ontario's attorney-general, which maintains Truscott
was rightly convicted of the murder of 12-year-old Lynne Harper,
his classmate and fellow resident at the RCAF base at Clinton,
Ont.
Brooks was the chief medical officer at the base and described
himself as the "right-hand man" to then-Inspector Harold
Graham, the Ontario Provincial Police officer in charge of the
investigation.
A spokesperson for the attorney
general's ministry refused to say why it asked to have seven
pages dealing with Brooks' testimony removed from Kaufman's report.
"This is not a matter that we will be making any comment
on," said Brendan Crawley. "We will not be making any
comment on any substantive matters, except in court, on the record,
at the appropriate time."
Within approximately three
months of his arrest, Truscott, then 14, had been convicted and
sentenced to hang for the murder. His sentence was later commuted
to life imprisonment and he was paroled in 1969. Until six years
ago, he lived under an assumed name.
In his report, Kaufman found
there was a reasonable basis for concluding a miscarriage of
justice likely occurred.
Based on his findings, the
federal government referred the case to the Court of Appeal for
a determination of whether Truscott's conviction should stand.
Brooks may appear in court later this year, as one of several
witnesses who will testify during three weeks of hearings set
to begin June 19.
Lawyers for Truscott and the
Crown appeared briefly before a five-judge panel of the court
Tuesday to discuss scheduling and related matters. Testimony
from witnesses is expected to be completed in early July, said
Chief Justice Roy McMurtry. Lawyers will then have until the
fall to file their written court briefs, with final oral arguments
to take place next January.
Brooks is one of several witnesses
the Crown wishes to cross-examine. Back in 1959, he asked by
the Surgeon General to assist Graham and said they had a very
close working relationship that began the moment Graham arrived
on the scene.
"I was to be Harold Graham's
left-hand man, I guess, or right-hand man on this," he recalled
while being interviewed by Kaufman at age 81. His comments were
included in a section of the report that remained intact.
"I hung on to his tail
as much as possible. Frankly, I can't remember the details, but
I hung on to whatever he was doing."
Brooks attended the autopsy,
conducted a physical examination of Truscott after his arrest
and was privy to conversations between police, a local family
doctor and the coroner who performed the autopsy. At the 1959
trial, he also provided what was considered highly damaging evidence
for the defence when he testified that lesions on Truscott's
penis were consistent with an "inexpert attempt at penetration"
and had developed within the time frame of Lynne's murder, bolstering
the Crown's theory that Truscott fed his teenage lust by raping
a virgin.
But Truscott said the lesions were from a six-week-old skin condition
he had been too embarrassed to tell anyone about. Defence medical
experts at the time, and more recently, have cast doubt on Brooks'
theory. During Kaufman's review, Dr. Donald Rosenthal, a dermatology
professor at McMaster University, said it was "possible
but unlikely" the lesions were caused by forcible sexual
intercourse.
Injustice revealed?
BY KEITH LACEY, klacey@northernlife.ca,
Thursday, February 23, 2006
In their own small way, over
the past four years, dozens of paralegal and law clerk students
at Sudbury's CTS College may have helped a southern Ontario man
in his bid to regain his good name after being convicted of murder
at age 14 more than 45 years ago.
Mona Primeau, a teacher at
Sudbury's CTS College, became fascinated with the Truscott case
when she was a young girl growing up in southern Ontario.
The accused, Stephen Truscott, who is now almost 60 years old,
was convicted in 1959 of murdering a 12-year-old female schoolmate.
Sentenced to an adult prison,
Truscott spent a long stint on death row back when Canada still
had the death penalty. He ended up serving a 10-year sentence
before being released on parole. Truscott has spent much of his
adulthood trying to clear his name and has steadfastly maintained
his
innocence.
Truscott has received a lot
of national publicity over the past few years in his quest to
clear his name. Several popular television programs like CTV's
W5 and CBC's The Fifth Estate have examined his case.
The Ontario Court of Appeal
has ruled it will hear an appeal of Truscott's case, which is
expected to begin in late 2006 or early 2007.
Truscott's legal team will
be asking the Court of Appeal to overturn the conviction and
register an acquittal.
Mona Primeau, who has been
teaching paralegal students at CTS College for five years, said
she became fascinated by the case when she was a young girl growing
up in southern Ontario.
"I read about this case
when I was a little girl about 12 years of age and it really
was the reason I decided to enter the legal profession,"
said Primeau.
Four years ago during a class
in Sudbury, she mentioned Truscott's case to students and they
made it clear they wanted to get involved.
She contacted Truscott and
his family and they had no objection to Primeau and her students
getting involved.
Seven graduating classes over
the past four years, involving several dozen students, have read
hundreds of newspaper articles, numerous books about the case,
witness accounts, trial transcripts, police reports and autopsy
results.
Primeau said it's clear to
her Truscott did not receive a fair trial and almost all of her
students agree after many long hours of exhaustive research.
"My students have really
poured their heart and souls into this," she said. "Most
come up with the same conclusion I did long ago...this is not
justice and he did not receive a fair trial.
"I've never tried to convince
myself of his innocence or guilt and that's never been my job
as a teacher, but what I wanted to achieve was a clear review
of all the evidence now available so many years later. It's become
very clear this young boy did not receive any kind of fair trial."
Students from her classes last
year presented a lengthy written submission to Attorney General
Michael Bryant's office in relation to the Truscott case.
Bryant replied and thanked
all of the students for all of their hard work and made it clear
their submissions were appreciated and would be considered by
his office, said Primeau.
Last November, two of Primeau's
classes from CTS College in Sudbury were invited to attend a
symposium on Truscott's trial, conviction and attempt to get
a new trial arranged by high school students at Humberview Collegiate
in Toronto.
Numerous members of Truscott's
family attended and Primeau and her students were treated "like
stars" throughout the symposium, where much of the evidence
they have gathered over the years was presented.
The police investigation, autopsy
results and eyewitness accounts all add up to a case where a
conviction should never have been entered against Truscott, said
Primeau.
"There were just so many
different things that didn't add up," she said. "As
I said, it's never been my intention to prove innocence or guilt,
but to look at the case in a legal sense and determine if justice
was served or if this young boy received a fair trial.
"The general consensus
by almost every one of the students' I've worked with was he
did not receive a fair trial and therefore, justice was not served."
All of her students involved
for the past four years should be applauded for their hard work
and dedication and "playing a small part" in ensuring
this case is now going before the Ontario Court of Appeal, she
said.
Researching the case has provided
invaluable experience for her students and she's glad so many
have learned so much from one case, she said.
Truscott panel could
still hear old evidence
By LAUREN LA ROSE, CP,
Fri, May 26, 2006
TORONTO -- The Ontario Court
of Appeal said yesterday it won't decide ahead of time whether
old evidence should be considered admissible in the forthcoming
review of Steven Truscott's 46-year-old murder conviction.
Crown lawyers are trying to
prevent Truscott's defence team from relying on decades-old evidence
when the appeal court begins its review of the controversial
murder conviction next month.
Former justice minister Irwin
Cotler had defined the terms of reference for the appeal to be
based on so-called fresh evidence -- material that has not been
presented in prior court proceedings -- saying there was a "moral
obligation" to assess whether new evidence would have affected
the verdict.
That followed a judicial review
in 2004 by former Quebec judge Fred Kaufman, who found a miscarriage
of justice likely had occurred in Truscott's case, opening the
door for the appeal court's review.
"There is nothing in terms
of reference that would suggest that the minister of justice
intended that (Kaufman's) findings should act as a filter on
the material that the appellant or the Crown can put before us
on the reference," the appeal court said in an endorsement
released yesterday.
All of the information put
before Kaufman should be made available to the Crown, the defence
and the court, the five-judge panel said. "It will be open
to the parties to argue whether or not this evidence meets the
test for fresh evidence."
Truscott was 14 when he was
convicted and sentenced to hang for the murder of 12-year-old
Lynne Harper near Clinton in 1959. Truscott's appeal was denied,
but his death sentence later was commuted to life in prison.
The Supreme Court upheld his appeal in 1966 and he was paroled
in 1969.
Truscott's lawyers want evidence
presented to the high court in 1966 to be considered fresh for
the review, scheduled for June 19.
Appeal court won't
rule early on old evidence admissibility in Truscott case
LAUREN LA ROSE, May 25,
2006
TORONTO (CP) - The Ontario
Court of Appeal said Thursday that it won't decide ahead of time
whether old evidence should be considered admissible in the forthcoming
review of Steven Truscott's 46-year-old murder conviction.
Crown lawyers are trying to
prevent Truscott's defence team from relying on decades-old evidence
when the appeal court begins its review of Truscott's controversial
murder conviction next month.
Former justice minister Irwin
Cotler had defined the terms of reference for the appeal to be
based on so-called fresh evidence, saying there was a "moral
obligation" to assess whether new evidence would have affected
the verdict.
That followed a judicial review by former Quebec judge Fred Kaufman
in 2004 which found that a miscarriage of justice had likely
occurred in Truscott's case, opening the door for the appeal
court's review.
"There is nothing in terms
of reference that would suggest that the minister of justice
intended that (Kaufman's) findings should act as a filter on
the material that the appellant or the Crown can put before us
on the reference," the appeal court said in an endorsement
released Thursday.
All of the information put
before Kaufman should be made available to both the Crown, defence
and the court, the five-judge panel said.
"It will be open to the
parties to argue whether or not this evidence meets the test
for fresh evidence."
The Crown had argued that the
review should be restricted to so-called fresh evidence - material
that has not yet been presented in prior court proceedings -
and should not include information that has already been heard.
"The determination of
the admissibility of the 'new information' for the purposes of
the reference will depend on our application of the principles
for admitting fresh evidence," the endorsement said.
Truscott was 14 when he was
convicted and sentenced to hang for the murder of 12-year-old
Lynne Harper in 1959, less than three months after her body was
found near the southwestern Ontario town of Clinton, about 100
kilometres north of London.
On Jan. 21, 1960, Truscott's
appeal was denied, but his death sentence was commuted to life
in prison. The Supreme Court upheld his appeal in 1966, and Truscott
was released on parole in 1969.
Truscott's lawyers want evidence
that was presented to the high court in 1966 to be considered
fresh for the review, scheduled for June 19.
Truscott's lawyers argue that
archival documents that existed in 1959 and 1966 and weren't
disclosed to the defence could have been used to the challenge
the credibility of Crown witnesses and support their case.
Furthermore, Truscott's lawyers
intend to challenge whether the Supreme Court would have dismissed
their client's appeal had the fresh evidence available at the
time been admissible in court.
"We do not agree with
the appellant's suggestion that evidence that was before the
Supreme Court in 1966 can constitute fresh evidence for the purpose
of this current reference," the appeal court said.
DNA tests conducted on Harper's
exhumed remains in April failed to provide any new evidence.
The Attorney General's office and Truscott's lawyers declined
to comment on the endorsement while the review case is before
the courts.
Case may turn on
a worm
Steven Truscott: Part 1
Kelly Patrick, National
Post, June 10, 2006
On June 11 1959, 12-year-old
Lynne Harper was found raped and strangled to death in a wooded
grove near a Clinton, Ont., air force base. Steven Truscott,
the 14-year-old classmate who last saw her alive, was sentenced
to hang for her murder. Now, the Ontario Court of Appeal is set
to review Mr. Truscott's conviction. In the five-part series
that begins today, Kelly Patrick explores a case that has gripped
Canada for 47 years. Part One: The case reopened. Watch
the slideshow
- - -
For 47 years, Steven Truscott's
murder conviction has loomed large in the Canadian justice system
and in the Canadian psyche. That's why it will be remarkable
if something as small as a fly helps finally resolve the case.
According to submissions from lawyers for the Crown and Mr. Truscott,
at least two -- and very likely more -- forensic entomologists
are expected to testify on the key issue of the victim's time
of death at the Ontario Court of Appeal's history-making reappraisal
of Mr. Truscott's case.
That hearing is scheduled to
begin on June 19.
Insect evidence has never been
raised publicly at any point in Mr. Truscott's nearly half-century
legal odyssey.
"In these cases, sometimes
bugs can provide the most reliable and unbiased evidence about
how long someone has been dead," says Robert Hall, a forensic
entomologist at the University of Missouri.
The introduction of this new
category of expertise forms just one of the evidentiary knots
five judges will have to untangle as they revisit the rape and
murder of 12-year-old Lynne Harper in 1959.
"The Truscott case is
unique in so many ways," says Syd Usprich, a law professor
at the University of Western Ontario in London. "It's just
the sheer passage of time. I think people have to understand
how difficult that makes things."
Many of the key players in
the case have died. Others were so young at the time of the murder
their memories are bound to be fuzzy.
No DNA evidence survives --
not even on the victim's body, which was exhumed from its southern
Ontario grave in April in a bid to make sure no evidence went
unearthed.
Mr. Truscott, now 61, was sentenced
to hang at age 14 for raping and strangling Lynne, the Grade
7 classmate he took for a bike ride the night she vanished near
an air force base in Clinton, Ont.
His death sentence was commuted
to life in prison and he was released on parole in 1969. For
the next three decades, Mr. Truscott lived quietly with his family
in Guelph, Ont. He emerged in 2000 to re-assert his innocence
and begin a belated battle to clear his name.
In October, 2004, Irwin Cotler,
then the federal justice minister, concluded a miscarriage of
justice likely occurred in Mr. Truscott's case and sent it to
the Ontario Court of Appeal for a unique review on "fresh
evidence."
Since then, lawyers for the
Crown and Mr. Truscott have waged a fierce battle behind the
scenes over everything from how witnesses will be examined to
how wide the case's scope should be.
The lawyers declined to be
interviewed for this story.
However, the thrust and parry
of their opposing court submissions provides a glimpse into their
backstage legal sparring and a taste of what is to come at the
three-week hearing.
Hints of the bug evidence,
for example, first surfaced publicly in a factum Mr. Truscott's
legal team filed on Jan. 13, arguing the court should hear live
witness testimony.
The document refers to an exhaustive
new investigation police launched after Mr. Cotler sent the case
to the Ontario Court of Appeal.
"On September 27, November
10 and December 23, 2005, the Respondent [the Crown] produced
thousands of pages of interviews and other documents to the Appellant
[Truscott] which had been gathered and/or created by the 2005
team of OPP and RCMP officers assigned to the case," the
document says.
"The materials include
expert opinions, civilian statements and police statements and
notes. They introduce two new fields of expertise into the case
which have not been seen before; namely entomology and gastroenterology."
The modern medical field of
gastroenterology -- which deals with diseases of the digestive
system -- is technically new to the Truscott case. But it will
likely be applied to Lynne's stomach contents, evidence exhaustively
explored at the original trial and at a Supreme Court hearing
in 1966.
Bugs, on the other hand, have
never been a factor until now.
Popularized by the CSI series
of TV shows, the field of forensic entomology sees bug experts
extract clues from insects found on corpses.
It is not clear how bug evidence
will play into Mr. Truscott's new appeal. But a Crown factum
filed on Jan. 17 says the Crown plans to call two forensic entomologists
"on the issue of time of death."
It's likely Mr. Truscott's
lawyers will call their own experts in response.
Lynne's time of death was one
of the key circumstantial factors arrayed against Mr. Truscott
at his trial in a Goderich, Ont., court in September, 1959.
Central to the Crown's theory
was the testimony of a pathologist who surmised from Lynne's
stomach contents and her state of rigor mortis that she died
between 7 and 7:45 p.m. on June 9, 1959, the evening she went
missing.
Mr. Truscott admitted to cycling
with Lynne for part of that period.
However, witnesses confirmed
Mr. Truscott was back, alone, at the air force station school
he and Lynne attended at around 8 p.m., meaning if Lynne died
after that time Mr. Truscott could not be her killer.
Although insects have never
been used as evidence in Mr. Truscott's case, the maggots crawling
on Lynne's dead body were described in detail at the original
trial.
John Penistan, the pathologist
who conducted Lynne's autopsy and later narrowed her time of
death to a 45-minute window, told the court the maggots were
"preserved" for study by the Attorney-General's Laboratory,
the lab that preceded today's Centre of Forensic Sciences in
Toronto.
"The first observation
I made at the autopsy was that there was a very large number
of fly eggs and maggots measuring up to a quarter of an inch
in length in the region of the nose, from which there had been
little fluid exuding, coming out, and particularly in the region
of the sexual parts," Dr. Penistan testified.
Jason Byrd, an entomologist
at the University of Florida, said bugs were rarely collected
in homicides cases in the mid-20th century.
"That's significant in
and of itself," he said. "This was 47 years ago. This
may date back to one of the first cases where entomological evidence
could be a factor."
Forensic entomologists trying
to determine time of death usually turn to a common blue-green
fly called the blowfly because the female of the species lays
eggs in the wounds or orifices of freshly dead animals and humans.
(Houseflies, by contrast, lay eggs in feces.)
Blowflies typically lay eggs
in batches within moments of death.
The eggs hatch into maggots,
white larvae that feed on a corpse through three early stages
of growth: first, second and third instar. The maggots then wander
off to pupate into adult flies.
If bug experts can determine
where maggots are in this rapid life cycle, they can backtrack
and figure out, roughly, the minimum time a corpse has been dead.
But insect evidence is often
hotly disputed in court, Mr. Hall cautions.
That's because three key facts
affect the start and speed of maggot growth: Blowflies do not
lay eggs after dark; they do not lay eggs in corpses they can't
access; and they grow faster in hotter temperatures.
Lawyers will quibble about
what time the sun set and the accuracy of temperature records
to make bug evidence work in their favour, Mr. Hall says.
"Sometimes, it's going
to be as useful as the attorneys involved want it to be,"
he said.
As far as the legal squabbles
in this case go, Mr. Truscott's lawyers seem to have won the
early fights.
His team is comprised of James
Lockyer, Marlys Edwardh, Philip Campbell and Hersh Wolch, all
of whom are well-known for their work with the Association in
Defence of the Wrongly Convicted (AIDWYC), the group that helped
secure exonerations for Guy Paul Morin and David Milgaard.
In a May 25 decision, the Ontario
Court of Appeal sided largely with Mr. Truscott's team on the
question of what types of old evidence will be allowed.
The court also backed the Truscott
team's earlier request to have witnesses testify viva voce, or
live, an extremely uncommon move for a court that usually limits
itself to combing the written record and hearing from lawyers.
"Very rarely does the
court hear viva voce evidence," says Alison Warner, legal
counsel for the court.
A witness last testified live
before the Ontario Court of Appeal in 1998, she says.
The court has not yet released
a list of witnesses for the Truscott hearing.
However, the lawyers' submissions
filed this year mention the names of some of those expected to
testify. There is no guarantee, however, that they will all take
the stand.
Karen Daum, a witness who was
just nine years old at the time of the murder, is expected to
testify about what she saw on a county road pivotal to the case
the night Lynne disappeared, the documents say.
A childhood friend of Lynne's,
Catherine Beaman, is expected to tell the court she and Lynne
frequently thumbed rides when they lived at RCAF Clinton, according
to the documents.
Mr. Truscott has always maintained
he saw Lynne hitch a ride in a grey 1959 Chevrolet the night
she disappeared. Lynne's parents testified at the trial that
their daughter never hitchhiked.
Two women, Sandra Stolzmann
and Elizabeth Hulbert, are expected to testify that a key child
witness for the Crown at the trial later told them she lied on
the stand.
An ageing air force doctor,
David Hall Brooks, is expected to acknowledge on the stand that
tunnel vision led him and other investigators to focus exclusively
on Mr. Truscott as a suspect.
Witness testimony in the case
is scheduled to last three weeks, from June 19 to July 7. Legal
arguments in the case won't start until January.
Then Mr. Truscott's fate will
be left to five judges. They have four options: They can dismiss
his appeal altogether or they can quash his conviction and enter
a stay of proceedings, order a new trial or enter a verdict of
acquittal.
Despite the widespread public
support Mr. Truscott enjoys, his case is far from a slam dunk.
"[Getting an acquittal]
is incredibly difficult if you are not in possession of some
sort of dispositive evidence, usually DNA," said Chris Sherrin,
former director of the Innocence Project at Osgoode Hall Law
School.
"But if you don't have
that sort of evidence, if you are forced to rely upon perhaps
a mountain of circumstantial evidence suggesting you are innocent,
it's still incredibly difficult to overturn a conviction, partly
because it's your burden to do it, partly because of the passage
of time."
kpatrick@nationalpost.com
TIMELINE
JUNE 9, 1959 In the evening,
12-year-old Lynne Harper walks to the elementary school at RCAF
Clinton, the radar training school where she lived with her family.
She later saw Steven Truscott and rode north on the handlebars
of his bike on County Road. At approximately 11:20 p.m., Lynne
is reported missing by her father, Flying Officer Leslie Harper.
JUNE 10, 1959 Steven is interviewed
by police and air force personnel at 9: 30 a.m., 12:30 p.m.,
5 p.m. and 7 p.m.
JUNE 11, 1959 At approximately
1:50 p.m., Lynne's body is found in Lawson's Bush. At 7:15 p.m.,
Dr. John Penistan, assisted by Dr. David Hall Brooks and observed
by Corporal Hank Sayeau, performs an autopsy on Lynne's body.
JUNE 12, 1959 Shortly after
7 p.m., Steven is taken into custody. Doctors examine him starting
at 10:15 p.m.
JUNE 13, 1959 At approximately
2:30 a.m. Steven is charged under the Juvenile Delinquents Act
with Lynne's murder. Police execute a search warrant at the Truscott
home. Later that day, they seize the clothing Steven was wearing
the day police picked him up, including his underwear.
JUNE 30, 1959 Magistrate Dudley
Holmes of the Juvenile and Family Court orders Steven be tried
as an adult.
JULY 10, 1959 Steven's application
for leave to appeal Magistrate Holmes's decision is denied.
JULY 13-14, 1959 Steven's preliminary
inquiry takes place. On July 14, he is committed to stand trial
for murder. He remains in custody pending trial.
SEPT. 16-30, 1959 Steven's
trial takes place in Goderich, Ont., before Justice Robert Ferguson
and a jury. Seventy-four witnesses testify.
SEPT. 30, 1959 The jury returns
a verdict of guilty, with a recommendation for mercy. Judge Ferguson,
as required by law, sentences Steven to be hanged.
JAN. 20, 1960 The Ontario Court
of Appeal unanimously dismisses Steven's appeal.
JAN. 21, 1960 The federal Cabinet
commutes Steven's death sentence to life in prison.
FEB. 2, 1960 Steven is transferred
to the Ontario Training School for Boys in Guelph, Ont.
FEB. 24, 1960 The Supreme Court
of Canada denies Steven's application for leave to appeal.
JAN. 14, 1963 Steven is transferred
to Collins Bay Penitentiary in Kingston, Ont. He turns 18 four
days later.
MARCH 24, 1966 Isabel LeBourdais's
book, The Trial of Steven Truscott, is published.
APRIL 26, 1966 The federal
Cabinet refers the case to the Supreme Court of Canada.
OCT. 5-12, 1966 The Supreme
Court of Canada hears testimony from 26 witnesses, including
Steven, who did not testify at his trial.
JAN. 25-30, 1967 Lawyers for
Steven and the Crown make oral submissions to the Supreme Court.
MAY 4, 1967 In an 8-1 decision,
the Supreme Court rules that had an appeal in Steven's case been
heard, it would have been dismissed.
OCT. 21, 1969 Steven is released
on parole. He is 24.
NOV. 28, 2001 Lawyers from
the Association in Defence of the Wrongly Convicted file an application
on Steven's behalf asking that the federal minister of justice
review the case.
JAN. 24, 2002 Then-justice
minister Martin Cauchon appoints retired Justice Fred Kaufman
to examine Steven's application and provide advice to the minister.
APRIL 19, 2004 Justice Kaufman
submits his 700-page report.
OCT. 28, 2004 Then-justice
minister Irwin Cotler finds "there is a reasonable basis
to conclude that a miscarriage of justice likely occurred"
in Steven's case. He orders the Ontario Court of Appeal to hear
Steven's case as though it were an appeal on the basis of fresh
evidence.
JUNE 19, 2006 The Court of
Appeal is scheduled to begin hearing live testimony in Steven's
47-year-old case. Sources: Kaufman report, April 19, 2004 and
news stories.
SLIDE SHOW
Reporter Kelly Patrick narrates
a slide show outlining the Steven Truscott story.; nationalpost.com
DOCUMENTS
See the original trial testimony
documents for yourself.; nationalpost.com
MONDAY
Our series continues with a
retelling of the night Lynne Harper died
© National Post 2006
Zeroing in on Steven
Kelly Patrick, National
Post, June 13, 2006
When Lynne Harper's body was
discovered at 1:50 p.m. June 11, 1959, the Ontario Provincial
Police called in one of its biggest guns, a man who rose to commissioner
-- the force's top job -- 14 years after heading up the probe
into Lynne's murder.
Less than 48 hours after Harold
Graham's probe began, it ended with Steven's arrest.
Then an inspector, Graham was
a bulldog of an investigator. He handled more than 100 homicide
cases over his career.
"Although he wasn't a
flamboyant officer, he had the reputation for being extremely
methodical. He was diligent and would dig deep for clues,"
former Progressive Conservative MPP Steve Gilchrist told the
Ontario Legislature upon then-Commissioner Graham's death in
November , 2001.
Shortly after arriving in Clinton
to begin his investigation, then-Insp. Graham zeroed in on Steven
Truscott, the lanky, athletic boy who last saw Lynne.
The case against Steven was
-- and still is -- entirely circumstantial.
But if he is innocent, the
spot where Lynne's raped and strangled body was discovered proved
a stroke of horribly bad luck.
Lynne was found in a bush owned
by farmer Bob Lawson, the same bush Steven said he and Lynne
bicycled past the night she disappeared.
Steven, however, has never
wavered in his insistence that he and Lynne did not ride into
the woods.
Instead, he says they biked
north on the County Road connecting RCAF Clinton to Highway 8,
dropped her at the corner, then watched her get into a grey,
1959 Chevrolet car headed eastbound toward Seaforth, Ont.
But if the driver who gave
Lynne a lift -- or someone else she met later in the night --
killed her, why would he or they take the girl back to the bush
she and Steven cycled past earlier in the evening?
After all, it was a grove of
trees so close to the air force base where Lynne lived that searchers
would almost certainly look there first.
It was the first of many factors
that would lead Insp. Graham and the OPP officers beneath him
to train their collective gazes on Steven -- even though several
other possible suspects, with shady sexual histories or criminal
convictions, had connections to RCAF Clinton.
A 2000 documentary by the CBC-TV
investigative program the fifth estate revealed that the OPP
overlooked a "sexual deviant" named Alexander Kalichuk.
As an air force sergeant who
lived near Clinton, he was arrested and released three weeks
before Lynne's murder for allegedly trying to lure a young girl
into his car. He dangled a pair of panties as bait.
Police also ignored a convicted
rapist who repaired a dryer at Lynne's home and a lifeguard at
the base's pool who had sexually abused his own daughters, according
to a 2001 book by journalist Julian Sher, who also produce the
fifth estate.
Instead, the OPP and air force
staff interviewed Steven six times before they picked him up
just after 7 p.m. June 12, 1959 --without his parents' knowledge
and without telling him he was a suspect.
After an exhausting night,
filled with driving questions and an embarrassing medical exam
where two doctors examined sores on Steven's penis, he was arrested
and charged with Lynne's murder.
Three months later, on September
16, 1959, Steven's trial opened in a Goderich courtroom.
Justice Robert Ferguson ordered
Steven placed in the prisoner's box.
The court's registrar turned
to the jury's foreman, a milkman, and to the 11 other Huron County
men who would decide whether the 14-year-old prisoner lived or
died.
"Gentleman of the jury,
look upon the prisoner and harken to his charge. He stands indicted
by the name of Steven Murray Truscott, that Steven Murray Truscott
on or about the ninth day of June, 1959, at the Township of Tuckersmith,
in the County of Huron, did unlawfully murder Lynne Harper contrary
to the Criminal Code of Canada.
"Upon this indictment,
he hath been arraigned, upon his arraignment he hath pleaded
not guilty and for his trial he has put himself upon his Country,
which Country you are."
Crown Attorney Glenn Hays presented
his case first.
His theory was built on several
important pillars. Today, Steven's lawyers and backers argue
Mr. Hays's case has been undermined by the discovery of key evidence
he and the OPP failed to disclose at the original trial, and
by other evidence that has surfaced in the decades after Steven's
trial.
THE MOTIVE: JOCELYNE GAUDET
AND A SECRET DATE
One of Crown Attorney Hays's
challenges was convincing a jury that a 14-year-old boy who'd
never been in trouble with the law had raped and killed Lynne.
Why did Steven do it? The police
and Mr. Hays found their answer in Jocelyne Gaudet, a 12-year-old
classmate who testified at trial that Steven invited her to Lawson's
Bush to look for calves the night of Lynne's disappearance --
and, significantly, insisted she keep the meeting a secret.
The Crown theorized that when
Jocelyne couldn't make the date Lynne became an unwitting substitute
for a boy who was determined to sneak any available girl into
the woods.
Steven denies he made the date
with Jocelyne.
Jocelyne testified that Steven
had stopped by her house just before 6 p.m. to see if she was
ready. She wasn't. The Gaudet family hadn't finished dinner.
"I suggest to you, gentlemen,
that if they were late having their supper, it was God's blessing
to that girl," Mr. Hays said in his closing address to the
jury.
Steven denies knocking on Jocelyne's
door, but there was room in the timeline for this to happen.
He was out fetching coffee for his mother at that time, giving
him the opportunity to stop by.
Jocelyne testified that after
supper she went looking for Steven along the County Road, at
Mr. Lawson's barn, in the bush and by the Bayfield River.
She couldn't find Steven.
Inconsistencies peppered Jocelyne's
performance on the stand, especially when it came to the timeline.
Jocelyne, however, stuck to
the story that she was searching for Steven -- not someone else
-- the night Lynne vanished.
That's why two OPP notes from
June, 1959, dug up decades later proved significant. Both suggest
Jocelyne was looking for Lynne, not Steven, the night of June
9.
If that was the case, it would
cast doubt on Jocelyne's story that she had been looking for
Steven to keep a pre-planned rendez-vous. Neither Statement was
disclosed to the defence.
One of the statements was a
June 12, 1959 note, handwritten by Insp. Graham, which read:
"Jocelyne Gaudet: said
she was looking for Lynne -- came out of bush -- said she was
where Lynne was found (later.)"
The other was a June 15, 1959
statement by another child witness, Arnold "Butch"
George, who claimed Jocelyne had told him she was looking for
Lynne that evening.
More than three decades later,
these undisclosed statements were raised during an exhaustive
legal investigation into whether Steven was the victim of a miscarriage
of justice.
In 2002, retired Justice Fred
Kaufman was appointed to conduct an investigation into Truscott's
case.
The probe ended in April 2004
with Judge Kaufman recommending the Ontario Court of Appeal review
set to begin next week.
Jocelyne was subpoenaed during
the investigation.
Of 21 witnesses, she was the
only one who refused to testify voluntarily. She testified that
she couldn't remember the details of what she said in 1959, but
that she was an honest child and would not have lied on the stand.
Justice Kaufman also heard
sworn statements from two of Jocelyne's nursing school classmates
who claimed she told them in 1966 she had lied at the trial.
As well, Mr. Lawson, the farmer
who owned the woodlot where Lynne's body was found, testified
to Judge Kaufman that Jocelyne asked him to lie on her behalf
in 1959. Mr. Lawson, along with the two nursing school classmates,
are expected to testify at the upcoming Court of Appeal hearing.
THE OPPORTUNITY: A SUMMER'S
NIGHT ON THE COUNTY ROAD
At trial in 1959, the Crown's
theory was simple. Rather than ride over the bridge and up the
County Road to drop Lynne off at Highway 8 -- as the defence
contended -- Steven turned off at a tractor trail well south
of the highway and cycled into Lawson's bush, where he raped
and killed his classmate.
June 9, 1959 was a hot summer
night. The County Road buzzed with children, none of whom had
any reason to remember specific times or people they passed.
Nobody actually saw Steven
and Lynne go into the wooded grove.
But the police and Crown knitted
together the testimony of several adult and child witnesses to
create an argument Mr. Hays said proved the pair had been on
the road one moment and gone the next. The only explanation for
their disappearance, he suggested, was that the pair had turned
at the tractor trail.
The defence tried to refute
that with the stories of three boys playing near the river.
Two of the boys claimed to
have seen Steven and Lynne ride double over the bridge.
One of those boys testified
that he saw Steven return alone and a third, different boy confirmed
it.
If the testimony of the three
boys was true it shredded the Crown's theory. But the jury believed
the Crown.
Today, Steven's lawyers argue
original police statements unearthed from archives undercut much
of the evidence the County Road witnesses gave at trial.
One of the boys, 11-year-old
Douglas Oates, still swears today that while digging for turtles
near the river bank on June 9, 1959, he saw Steven and Lynne
ride over the bridge.
"I have absolutely no
doubt at all," says Mr. Oates, now 58. "I knew them.
I knew both of them."
As well, Karen Daum, then 9,
told police in 1959 she saw Steven and Lynne cycle over train
tracks, well north of the bush where Lynne was found.
Her statement was not disclosed
until a Supreme Court review in 1966, at which point Steven's
lawyer decided not to call Karen.
She has since changed her to
story to a version less exculpatory for Steven but is scheduled
to testify before the Ontario Court of Appeal review next week.
THE CLINCHER: LYNNE'S TIME
OF DEATH
Doctor John Penistan, the chief
pathologist at nearby Stratford General Hospital, performed an
autopsy on Lynne's body the night of June 11, 1959.
He removed approximately a
pint of thick sludge from her stomach and placed the contents
in a jar. He examined the jar in the glow of a light bulb at
the morgue, then handed it, sealed, to OPP Corporal Hank Sayeau.
Digestion stops upon death.
Dr. Penistan testified at Steven's trial that based on Lynne's
full stomach -- and the fact that little of her dinner had passed
into the small intestine -- the girl died within two hours of
her last meal, which she finished at 5:45 p.m.
Dr. Penistan further narrowed
the time of death to between 7:00 p.m. and 7:45 p.m., a conclusion
Crown Attorney Hays said his clamped "like a vice on Steven
Truscott and no one else."
By his own admission, Steven
was bicycling with Lynne during part of that period. Steven's
lawyer, Frank Donnelly, called a different pathologist at trial
who disputed Dr. Penistan's conclusion, but the jury sided with
Dr. Penistan.
At the Supreme Court review
in October 1966, seven more expert witnesses squabbled over the
stomach contents evidence. Four backed Dr. Penistan's determination.
Three countered it.
In the end, the Supreme Court
majority sided with Dr. Penistan's supporters. "The effect
of the sum total of the testimony of the expert witnesses is,
in our opinion, to add strength to the opinion expressed by Dr.
Penistan at the trial that the murdered girl was dead by 7:45
p.m."
Dr. Penistan was not called
to testify at the Supreme Court review.
In the late 1990s the CBC-TV
investigative program the fifth estate discovered why.
In May, 1966, Dr. Penistan
sent then-assistant Commissioner Graham a draft of a paper he
intended to publish on Lynne's autopsy.
Affixed to the article was
a letter in which Dr. Penistan admitted he'd made an "agonizing
reappraisal" of his findings. Lynne could have died as late
as 12 hours after 7:45 p.m.
Neither the letter nor the
draft were disclosed to Steven's lawyers at the Supreme Court
review, which began in October 1966.
The article Dr. Penistan eventually
published was scrubbed of its controversial passages.
Mr. Sher, who produced the
fifth estate's documentary and later wrote a book on the case,
said he was shocked to find the letter.
"Then you realize that
this was one of the biggest cover-ups," he says.
Mr. Sher also obtained a copy
of OPP Cpl. Sayeau's notebook from the night of the autopsy.
It contained no reference to the time of death, prompting him
to suggest Dr. Penistan later tailored his findings to fit the
Crown's case.
A police bulletin issued by
Insp. Graham the night Lynne's body was found pegged the time
of death to 9 p.m.
Today, many medical experts
consider digestion speed an imprecise way to pinpoint time of
death. The question, however, is expected to be re-hashed before
the Ontario Court of Appeal -- this time with bug experts and
gastroenterologists, or digestion experts, adding their opinions
to the fight.
OTHER CONTROVERSIAL EVIDENCE
THAT DOOMED STEVEN
-Two doctors who examined Steven
the night he was arrested found two raw lesions the size of quarters
on either side of the shaft of his penis. They testified that
raping a small virgin could have caused the sores and said the
wounds corresponded with damage found in Lynne's genital area.
Steven testified at the Supreme
Court review in 1966 that a pre-existing skin condition caused
the sores. Doctors backed his evidence.
Bizarrely, however, Steven
testified that he had kept quiet about the condition until well
into his prison stay. The Supreme Court majority didn't buy it.
"We find it impossible
to accept Truscott's statement that he had never described the
condition of his penis, as it existed prior to June 9, 1959,
to anyone before he described it at the penitentiary to his counsel
on the reference," especially considering the penis evidence
contributed to his conviction.
The Supreme Court majority
concluded a pre-existing condition caused the sores, but that
raping Lynne aggravated them. The justices also concluded that
Steven had, contrary to his testimony, disclosed his penis condition
before the trial. Archival evidence seems to support this.
-At trial, the judge permitted
the Crown to enter as evidence pictures of bicycle tracks on
the tractor trail that seemed to match the tires on Steven's
bike. The impressions were deep. Clearly, the marks were made
when the ground was moist. However, significant rain last fell
in the area more than a week before Lynne's disappearance.
-The night Lynne disappeared,
she asked her parents to take her swimming at the base's pool.
The pool's rules generally required children to bring an adult
with them. Lynne's parents couldn't take her and wouldn't let
her go with a neighbour who was taking Lynne's brother. Lynne
was also denied a solo pass.
Steven told police Lynne was
"mad" at her mother for not allowing her to swim. Lynne's
mother insisted on the stand that her daughter was not angry
about the swimming squabble.
She and Lynne's father also
testified that Lynne never hitch-hiked. But archival statements
suggest her parents' first hunch was that their daughter had
thumbed a ride to her grandmother's house in Port Stanley and
that Lynne was perturbed the night she vanished. A childhood
friend who says she and Lynne frequently hitch-hiked together
is expected to testify at the Ontario Court of Appeal review.
- "Butch" initially
told police he saw his friend Steven on the County Road the night
of Lynne's disappearance. At Steven's trial, however, "Butch"
said he lied to protect Steven. He testified that he dropped
the charade when Lynne's body was discovered.
That said, archival evidence
shows he actually stuck to his original line in a statement he
gave to police shortly after the body was found. He changed his
story at trial. Some of his other trial evidence conflicts with
the then-undisclosed archival record.
- At trial, Judge Ferguson
allowed the Crown to enter as an exhibit the underwear police
seized from Steven the day he was arrested -- three days after
his bicycle ride with Lynne.
The Crown led the jury to believe
the underwear was the same pair Steven had worn the night Lynne
was raped and killed. The underwear bore traces of blood and
semen.
But police had no proof that
Steven had worn the same underpants for three days straight or
that he had taken off the dirty pair for a spell, and put them
back on, unwashed, the day police police picked him up.
At trial, the strongest evidence
in Steven's favour came from his clothes, and from the witnesses
who saw him at the school yard after he allegedly raped and strangled
Lynne. There wasn't a drop of blood, a single hair or any other
evidence on his clothes to indicate he had killed a girl just
minutes earlier.
He didn't look sweaty or rumpled.
He chatted briefly with his brother Ken and a few others at the
school grounds around 8p.m., before hurrying home to baby-sit
his younger brother and sister.
Steven behaved as though nothing
extraordinary had happened.
It didn't matter. The Crown's
case weighed too heavy. The 12 Huron County jurors returned their
verdict at 10:55 p.m. Sept. 30, 1959. Guilty, with a recommendation
for mercy.
But the law left no room for
mercy.
"Steven Murray Truscott,"
Judge Ferguson began, "I have not alternative but to pass
the following sentence upon you. The jury have found you guilty
after a fair trial.
"The sentence of this
court upon you is that you be taken from here to the place from
whence you came and there be kept in close confinement until
Tuesday, the 8th day of December, 1959, and upon that day and
date you be taken to the place of execution and that you there
be hanged by the neck until you are dead.
"And may the Lord have
mercy upon your soul."
Tomorrow: The Quest for Exoneration
kpatrick@nationalpost.com
DEFENCE'S CASE '59
1. Lynne and Steven run into
each other here, at the A.V.M. Hugh Campbell School on the grounds
of RCAF Clinton. Lynne asks Steven for a ride on the crossbars
of his bike.
2. Steven and Lynne cycle north
on the County Road. They pass most of Lawson's bush, seen here.
3. Steven and Lynne do not
turn into the bush. Instead, they keep cycling north, across
these train tracks.
4. Steven and Lynne ride over
this bridge spanning the Bayfield River.
5. Steven drops Lynne off here,
at the corner of the County Road and Highway 8. He rides back
to the bridge, alone, then watches as a hitch-hiking Lynne gets
into a grey, 1959 Chevrolet car.
6. The car in which Lynne is
riding drives east toward Seaforth, Ont.
7. Steven returns to the school
yard, unruffled, to chat briefly with his brother and a handful
of others before heading home to babysit.
CROWN'S CASE '59
1. Lynne and Steven run into
each other here, at the A.V.M. Hugh Campbell School on the grounds
of RCAF Clinton. Lynne asks Steven for a ride on the crossbars
of his bike.
2. Steven and Lynne cycle north
on the County Road. They pass most of Lawson's Bush, seen here.
3. Steven and Lynne turn east
down this tractor trail near the northern edge of Lawson's Bush.
They enter the bush.
4. Steven rapes Lynne and strangles
her with her blouse. He leaves her body here.
5. Steven returns to the school
yard, unruffled, to chat briefly with his brother and a handful
of others before heading home to babysit.
SLIDE SHOW
Reporter Kelly Patrick narrates
a slide show outlining the Steven Truscott story.; nationalpost.com
DOCUMENTS
See the original trial testimony
documents for yourself.; nationalpost.com
WEDNESDAY
Our series continues with the
quest for exoneration
Court orders CBC
to turn over tapes
TRACEY TYLER, LEGAL AFFAIRS REPORTER,
Toronto Star, Jun. 14, 2006
Ontario's highest court has ordered two journalists and the Canadian
Broadcasting Corporation to turn over videotapes of two people
interviewed for a television documentary about the Steven Truscott
case.
The CBC and the journalists, Julian Sher and Theresa Burke, opposed
the request by prosecutors, arguing the Crown was trying to turn
reporters into an "arm of the state."
Forcing them to surrender the material
would have a "chilling effect" on investigative reporting
and prevent the media from doing its job, they said.
But in a 5-0 decision yesterday, the Ontario Court of Appeal
found "no basis" for their assertions. The witnesses
were aware they were being interviewed for a television documentary
and there is no evidence they entered into confidentiality agreements
with the CBC, it said today (Wednesday).
It is "in the interests of justice"
the tapes be provided to the Crown and to Truscott's lawyer,
the judges said, adding the interviews could assist the court
in deciding whether to admit fresh evidence during its upcoming
review of Truscott's 1959 conviction for the murder of 12-year-old
Lynne Harper in Clinton, Ont.
The court begins hearing testimony from
witnesses on Monday.
The material is considerably less than
the Crown had hoped for. It had asked the court for an order
compelling the journalists to turn over notes and tapes of interviews
with eight people who spoke with the CBC.
Earlier this month, the court was told
that most of the tapes and other records no longer exist.
The interviews were conducted for an
episode of the fifth estate, which aired in March 2000.
One of the videotapes that must be turned
over involves an interview with Harold Graham, the former commissioner
of the Ontario Provincial Police, who, as an inspector, was in
charge of the investigation in 1959. Graham died several months
after the program aired. Only his voice is captured on the recording.
Truscott's lawyers argued there were
reports and notes prepared by Graham that were never disclosed
to the defence. But the Crown contends there is an issue as to
whether Graham was the author of those notes and reports.
The second tape involves an interview
with Bob Lawson, who owns the farm where Lynne's body was discovered
on June 11, 1959. Lawson testified at Truscott's trial, but provided
new information to the CBC.
The court will be in "a better position"
to assess the credibility and reliability of Lawson's new evidence
if the tape is available, the judges said yesterday.
"Obviously, we're disappointed about
the decision, but it's a pretty unique situation in which it
arises," said Paul Schabas, a lawyer who represented the
journalists and the CBC.
"The court is looking at a 47-year-old
murder conviction, and it's pretty careful in its decision to
recognize this is a unique situation."
Sher maintains the case involves an important
principle,
"The reason we fought this is that
it threatens journalistic integrity and sends a signal to any
future interview subject that, when they talk to a journalist,
what they are saying could end up in a court of law. That's not
why we do our work."
Sher produced the fifth estate program
and Burke was co-producer. He went on to write a book about the
case, Until You are Dead: Steven Trusoctt's Long Ride into
History. The title refers to the words the trial judge used
in sentencing Truscott to death by hanging. Burke was a researcher
for the book.
Truscott's death sentence was commuted
to life imprisonment and he was paroled in 1969.
Continued
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell